IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50277

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DAVID DRAKE, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 7:18-CR-258-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Defendant David Drake appeals from the judgment imposing a 120-

month sentence following his guilty plea to possession of a firearm by a 

convicted felon in violation of 18 U.S.C. § 922(g)(1). Drake argues here that 

the district court clearly erred in applying a four-level Section 2K2.1(b)(6)(B) 

enhancement, based on a finding that the firearms were found in close 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 7, 2020

Lyle W. Cayce

Clerk

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proximity to drugs and drug paraphernalia during a drug-trafficking offense. 

Drake contends that he was not involved in a drug-trafficking offense and that

the firearms did not facilitate his drug possession. We AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, the vehicle Drake was driving was stopped by an officer of the 

police department in Odessa, Texas. Drake consented to a search, which 

yielded 14 alprazolam pills that were not prescribed to him. Drake was 

indicted and convicted in Texas state court for possession of a dangerous drug. 

Approximately a year later, Odessa police were informed that narcotics 

were being sold out of Drake’s residence. Officers began surveillance on

Drake’s residence on October 23, 2018. They saw a Ford F-150 truck leave the 

residence and commit a traffic violation, allowing the officers to initiate a 

traffic stop. Drake was the driver of the vehicle and consented to a search by 

the officers. The officers found a clear baggie containing methamphetamine. 

Soon after the traffic stop, Drake’s brother contacted the officers and 

informed them that Drake’s adult son had removed firearms from Drake’s 

bedroom and garage, then hid them and a bag with suspected narcotics in 

Drake’s attic. The officers obtained a search warrant for Drake’s residence and 

executed it on October 24, 2018. In the attic, the officers found two 9mm 

handguns, a 12-gauge shotgun, a .17 caliber rifle, black-tar heroin, and drug 

paraphernalia. In Drake’s bedroom, officers located ammunition for the .17 

caliber rifle. The officers also found a 9mm handgun in Drake’s Cadillac. 

In November 2018, Drake was indicted as a felon in possession of a 

firearm. Without a plea agreement, Drake pled guilty to the indictment on 

December 14. At the sentencing hearing, the district court adopted the 

presentence report (“PSR”). The PSR concluded, among other things, that 

Drake should receive a four-level upward adjustment under Section

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2K2.1(b)(6)(B) of the Sentencing Guidelines, comment note 14(B), because “the 

firearms, drug paraphernalia, and black tar heroin located in the attic are 

indicative of drug trafficking.” Drake objected to that adjustment, arguing that 

the firearms and drug-related items were 70 feet from each other and that the 

trace amount of supposed drug residue found on the paraphernalia was not 

tested in a lab. The district court overruled the objection after finding that the 

firearms and contraband were proximately located and that the disputed 

adjustment was thus warranted. The district court imposed a withinGuidelines sentence of 120 months in prison and a three-year term of 

supervised release. This timely appeal followed. 

DISCUSSION

The parties dispute the standard of review. The Government argues that 

Drake’s argument on appeal is different than the one he made in district court, 

therefore subjecting it to plain-error review. Drake’s objection in the district 

court to the enhancement was that the firearms and contraband were not 

proximately located. On appeal, Drake argues that he was not involved in a

drug-trafficking offense and that the firearms did not facilitate his drug 

possession. It seems to us that both in the district court and here, Drake has 

argued in only slightly different language that the evidence does not support a 

connection between the drugs and the firearms, making the enhancement 

inapplicable. We consider the issue preserved. We will examine for clear error 

the district court’s factual inference that the proximity of items in Drake’s attic

indicated drug trafficking. See United States v. Coleman, 609 F.3d 699, 708 

(5th Cir. 2010). “A factual finding is not clearly erroneous if it is plausible in 

light of the record read as a whole.” United States v. Williams, 520 F.3d 414, 

422 (5th Cir. 2008).

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Section 2K2.1(b)(6)(B) of the Sentencing Guidelines provides for a fourlevel increase if the defendant “used or possessed any firearm . . . in connection 

with another felony offense.” The enhancement applies “if the firearm . . . 

facilitated, or had the potential of facilitating, another felony offense.” 

U.S.S.G. § 2K2.1 cmt. n.14(A). Additionally, this enhancement also applies “in 

the case of a drug trafficking offense in which a firearm is found in close 

proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”

§ 2K2.1 cmt. n.14(B)(ii). The commentary explains that the enhancement “is 

warranted because the presence of the firearm has the potential of facilitating 

another felony offense or another offense.” Id.

The district court relied in part on the PSR, which supported that the 

firearms had been taken from Drake’s bedroom and from the garage by his son, 

along with a bag containing suspected narcotics, to be hidden in the attic where 

black-tar heroin and drug paraphernalia were also located. When imposing 

the enhancement, the district court did not discuss the distance between the 

drug paraphernalia and black-tar heroin, though defense counsel had just 

argued that the distance was too great to show a connection. We conclude the 

district court implicitly inferred from these facts that Drake’s firearms were in 

close proximity to drug paraphernalia over which he also plausibly should be 

found to have had control, meaning the court was applying comment note 

14(B)(ii), quoted above. The district court’s finding was plausible and therefore 

not clearly erroneous.

AFFIRMED. 

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